Com. v. Coleman, J., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH SENTORE COLEMAN, JR. :
:
Appellant : No. 672 MDA 2020
Appeal from the Judgment of Sentence Entered November 20, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000090-2017
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JULY 7, 2021
Joseph Sentore Coleman, Jr. (Appellant) appeals from the judgment of
sentence imposed November 20, 2019, in the Lycoming County Court of
Common Pleas. Appellant was sentenced to two consecutive terms of life
imprisonment, following his jury conviction of two counts of second-degree
murder and related offenses for the October 2016 shooting deaths of Shane
Wright and Kristine Kibler, and his bench conviction of persons not to possess
firearms.1 On appeal, Appellant argues the trial court erred when it permitted
the Commonwealth to amend the criminal information, denied his request for
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(b), 6105(c)(2). The firearms offense was severed from
the jury trial.
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a Franks2 hearing, denied his motion for a change of venue, instructed the
jury on an offense not charged, and denied his motion for a new trial based
on the Commonwealth’s failure to disclose an interview. In addition, Appellant
challenges the weight and sufficiency of the evidence supporting his conviction
of persons not to possess firearms, and asserts the charge was based on a
confession admitted in violation of the corpus delicti rule. For the reasons
below, we affirm.
The facts underlying Appellant’s convictions are summarized by the trial
court as follows:
This case arose from the shooting deaths of Shane Wright
and Kristine Kibler on October 31, 2016, at 613 Poplar Street in
Williamsport, PA.
By way of background, [Appellant] called Casey Wilson and
directed Wilson to pick him up on Scott Street. Appellant then
directed Wilson to Race Street where they picked up Jordan Rawls.
Wilson drove Appellant and Rawls to 613 Poplar Street so that
Appellant and Rawls could rob Shane Wright, whom Appellant
believed was selling marijuana.
Wilson drove to the area of Wright’s residence and parked
on Trenton Avenue. Appellant directed Wilson, a friend of
Wright’s, to go inside Wright’s residence and determine whether
Wright and the other occupants were downstairs and to make sure
the back door was unlocked. Wilson went into the residence for
about ten minutes before returning to the vehicle and informing
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2 See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (Fourth
Amendment requires a hearing at defendant’s request when defendant
“makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and . . . the allegedly false statement is
necessary to the finding of probable cause”).
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Appellant and Rawls of the whereabouts of the persons inside the
residence.
Appellant and Rawls, each wearing a mask and armed with
a firearm, exited the vehicle and entered the residence. While
Appellant was on the first floor robbing or attempting to rob
Wright, Rawls was at or near the top of the stairs to the second
floor.
Kibler’s daughter, Cheyanna Wright, and her boyfriend
heard Kibler come out of her second floor bedroom and scream.
They opened the door of their room and observed a light -skinned,
masked gunman (Rawls) holding Kibler at gunpoint. Rawls
pointed his firearm at them and they retreated into their bedroom.
Shortly thereafter, they heard two gunshots.
Appellant and Rawls ran back to Wilson’s vehicle, which was
parked on Trenton Avenue. Once both were inside the vehicle,
Appellant directed Wilson to drive away.
When Cheyanna Wright and her boyfriend exited their
bedroom, they found Kibler in the hallway dying from a gunshot
wound and Shane Wright’s body in the front doorway. They called
9-1-1.
Trial Ct. Op., 8/14/20, 1-2.
Following an investigation, on November 1, 2016, Appellant was
charged with two counts of criminal homicide, two counts of criminal
conspiracy (murder and robbery), criminal attempt (robbery), robbery,
persons not to possess firearms, firearms not to be carried without a license,
and possession of an instrument of crime (PIC).3 On May 3, 2017, Appellant
filed an omnibus pretrial motion seeking, inter alia, severance of the firearms
offenses, a change of venue, and suppression of his arrest warrant due to the
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3 18 Pa.C.S. §§ 2501, 903(a)(1), 901(a), 3701(a)(1)(iii), 6105(c)(2),
6106(a)(1), and 907(b), respectively. The Commonwealth later withdrew the
PIC charge. See Order, 9/3/19.
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affiant’s intentional omission of relevant information in the warrant, i.e., a
Franks motion. See Appellant’s Omnibus Pre-Trial Motion, 5/3/17, at 2-3,
10-11. A month later, Appellant filed an amended Franks motion.
On June 22, 2017, the court entered an order resolving most of the
claims in Appellant’s pretrial motion — in particular, granting Appellant’s
motion to sever the firearms offenses and denying Appellant’s motion for
change of venue “without prejudice to reinstate during jury selection.” See
Order, 6/22/17, at 1. The court conducted a hearing on Appellant’s Franks
motion on August 31, 2017. On November 13th, the trial court entered an
order and opinion, finding Appellant did not meet “the Franks standard to
require [a] further hearing” and denying his motion to suppress. Order,
11/13/17.
Thereafter, on July 30, 2018, the Commonwealth filed a motion to
amend the information, proposing to add “to wit” clauses to both firearms
counts. See Commonwealth’s Motion to Amend Information, 7/30/18, at 1
(unpaginated). The Commonwealth explained that it did not intend to prove
Appellant possessed a handgun during the “home invasion robbery;” rather it
intended to prove he possessed a “Ruger .22 semi-automatic handgun” in a
motor vehicle – a fact he admitted in a videotaped interview with police. Id.
at 1-2. On September 11, 2018, the court granted the Commonwealth’s
motion to amend. See Order, 9/11/18.
On November 14, 2018, after a jury was chosen, the trial court declared
a mistrial, finding “irreconcilable differences between [Appellant] and his court
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appointed counsel and . . . substantial reasons for appointing new counsel.”
Order, 11/30/18.4 The court later appointed Robert Hoffa, Esquire, to
represent Appellant. Id.
The case proceeded to a jury trial before Senior Judge J. Michael
Williamson, specially presiding. On February 15, 2019, the jury found
Appellant guilty of two counts of second degree murder, and one count each
of attempted robbery, conspiracy to commit robbery, and robbery.5 Following
the verdict, Attorney Hoffa was permitted to withdraw, and present counsel,
Jeana Longo, Esquire, was appointed to represent Appellant.
After his February 2019, jury conviction, Appellant was charged with an
unrelated homicide that had occurred on August 30, 2016 (“the Park Avenue
shooting”).6 On July 8, 2019, Appellant moved for a change of venue for the
firearms trial based on the “pervasive” media coverage surrounding his
murder convictions and new charges. See Appellant’s Motion for a Change
of Venue or Venire, 7/8/19, at 3 (unpaginated). Meanwhile, Appellant filed a
motion for a new trial with respect to the homicide convictions, claiming he
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4 Although the order was entered November 14th, it was not docketed until
November 30th.
5The jury found Appellant not guilty of the lesser offense of third degree
murder.
6 On February 13, 2020, Appellant was convicted of first-degree murder and
related offenses for the Park Avenue shooting. His judgment of sentence was
affirmed by this same panel on April 23, 2021. See Commonwealth v.
Coleman, 710 MDA 2020 (unpub. memo.) (Pa. Super. Apr. 23, 2021).
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received discovery in relation to the Park Avenue shooting — namely, two
interviews with Ronald Shoop, Jr. — which were “wrongfully withheld from
him by the Commonwealth[,]” and relevant to the present homicide. See
Appellant’s Motion for a New Trial, 7/31/19, at 2-3 (unpaginated).
On September 3, 2019, Appellant waived his right to a jury trial, and
proceeded to a bench trial on the firearms charges before the Honorable Marc
F. Lovecchio. The court found him guilty of persons not to possess a firearm,
but acquitted him of the charge of possession of a firearm without a license.
On September 6th, Appellant filed a post-verdict motion challenging his
firearms conviction as against the weight of the evidence, and improperly
based on a confession admitted in violation of the corpus delecti rule. On
October 17, 2019, the trial court denied Appellant’s challenge to the weight of
the evidence, and deferred ruling on the corpus delecti issue until Appellant
raised the claim in a post-sentence motion. Meanwhile, on October 25, 2019,
President Judge Nancy L. Butts denied Appellant’s motion for a new trial in the
homicide case based on alleged suppressed interviews.
On November 20, 2019, Judge Lovecchio sentenced Appellant to an
aggregate term of two life sentences on all the offenses. Appellant filed a
timely post-sentence on November 26th, challenging both the sufficiency and
weight of the evidence supporting his firearm conviction, and seeking
reconsideration of the court’s decision to impose the life sentences
consecutively. The court denied Appellant’s motion on April 7, 2020. This
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timely appeal follows.7 Appellant subsequently complied with the court’s
directive to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Appellant raises the following eight claims on appeal:8
[1] Whether the trial court erred in permitting the
[C]ommonwealth to amend the criminal information to specify
that the gun [Appellant] possessed was different than the type of
gun that he was originally charged with possessing.
[2] Whether Appellant was deprived of his constitutional right to
a Franks hearing . . . after he made a substantial showing to the
court that the affidavit of probable cause for his arrest warrant
contained intentional, knowing, or recklessly omitted information
that provided the basis for probable cause.
[3] Whether the trial court erred in denying his motion for change
of venue or venire and by precluding him from having a venue
hearing which deprived him of a fair and impartial trial.
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7 Generally, a trial court must rule upon a post-sentence motion within 120
days or it is deemed denied by operation of law. See Pa.R.Crim.P.
720(B)(3)(a). However, when a post-sentence motion is denied by operation
of law, the clerk of courts must enter an order on the docket and serve the
order to the parties. Pa.R.Crim.P. 720(B)(3)(c). The defendant then has 30
days to file a notice of appeal. Pa.R.Crim.P. 720(A)(2)(b).
Here, the 120-day period for consideration of Appellant’s post-sentence
expired on March 25, 2020. However, the clerk of courts did not enter an
order denying the motion by operation of law. Rather, on April 7, 2020, the
trial court denied the motion on the merits, and Appellant appealed within 30
days. “[W]here the clerk of courts does not enter an order indicating that the
post-sentence motion is denied by operation of law and notify the defendant
of same, a breakdown in the court system has occurred and we will not find
an appeal untimely under these circumstances.” Commonwealth v. Perry,
820 A.2d 734, 735 (Pa. Super. 2003).
8 We have reordered Appellant’s issues for ease of disposition.
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[4] Whether the trial court erred in instructing the jury on a
Burglary charge when [Appellant] was not charged with a
Burglary.
[5] Whether the trial court erred in denying his motion for a new
trial after the [C]ommonwealth failed to disclose evidence of a
recorded witness interview until after trial which deprived
[Appellant] of the opportunity to investigate the claims made by
the witness.
[6] Whether the verdict of guilt with respect to the [firearms]
charge was based on insufficient evidence because the
Commonwealth failed to establish beyond a reasonable doubt that
he possessed the gun that . . was used pursuant to the factual
scenario established at his preliminary hearing.
[7] Whether the verdict of guilt with respect to the [firearms]
charge was [i]mproperly [b]ased on a confession that was
admitted in violation of the Corpus Del[i]cti Rule.
[8] Whether the verdict of guilty with respect to the [firearms]
offense was against the weight of the evidence because the
evidence established that the gun that was recovered was
different than the gun that was used during the . . . crime.
Appellant’s Brief at 8-9.
In his first issue, Appellant argues the trial court erred when it permitted
the Commonwealth to amend the criminal information on September 11,
2018, with regard to the firearms offense.9 Appellant’s Brief at 19. He insists
“the amendment charged [him] with a different offense” and “exposed [him]
to a different factual scenario that was not fully developed at the preliminary
hearing.” Id. at 19, 22. Appellant contends the persons not to possess crime
charged in the original criminal information was based on Wilson’s preliminary
____________________________________________
9 Although Appellant was charged with two firearms offenses, he was only
convicted of violating Section 6105 (persons not to possess). Thus, we will
refer to only one firearms offense.
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hearing testimony that Appellant carried a gun into Wright’s residence when
he and Rawls entered the home intending to rob Wright. See id. at 21-22.
However, Appellant argues that, after he admitted in a November 2016 police
interview that he sold a .22 Ruger to Wright sometime earlier on October 31st,
the Commonwealth sought to amend the information to include that factual
scenario, one that was not developed during the preliminary hearing. Id. at
21. He also maintains that “the gun that [he] sold to Shane Wright was
chrome and the gun that was presented at trial was gray[;]” thus, the gun
used in the home invasion was “arguably different than the gun” sold to
Wright. Id. at 22.
At the time Appellant was charged, Pennsylvania Rule of Criminal
Procedure 564 provided:
The court may allow an information to be amended when there is
a defect in form, the description of the offense(s), the description
of any person or any property, or the date charged, provided the
information as amended does not charge an additional or different
offense. Upon amendment, the court may grant such
postponement of trial or other relief as is necessary in the
interests of justice.
Pa.R.Crim.P. 564 (2001).10 This Court has explained: “[T]he purpose of Rule
564 is to ensure that a defendant is fully apprised of the charges, and to avoid
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10 Rule 564 was amended in 2016, with an effective date of December 21,
2017. Because Appellant was originally charged before the amendment, we
look to the prior language of the rule. Nevertheless, the Comment to amended
Rule 564 clarifies that “[t]he rule was amended . . . to more accurately reflect
the interpretation of this rule that has developed since it first was adopted in
1974.” Pa.R.Crim.P. 564, Comment. Thus, under either version, our review
is the same.
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prejudice by prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed.” Commonwealth v. Sinclair, 897 A.2d
1218, 1221 (Pa. Super. 2006).
When reviewing the grant of motion to amend an information:
[T]his Court will look to whether the appellant was fully
apprised of the factual scenario which supports the charges
against him. Where the crimes specified in the original
information involved the same basi[c] elements and arose
out of the same factual situation as the crime added by the
amendment, the appellant is deemed to have been placed
on notice regarding his alleged criminal conduct and no
prejudice to defendant results.
Further, the factors which the trial court must consider in
determining whether an amendment is prejudicial are:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds
new facts previously unknown to the defendant; (3) whether
the entire factual scenario was developed during a
preliminary hearing; (4) whether the description of the
charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth’s request for amendment allowed for ample
notice and preparation.
Commonwealth v. Mentzer, 18 A.3d 1200, 1202–03 (Pa. Super. 2011)
(citations omitted).
In the present case, the November 1, 2016, criminal complaint
accused Appellant of the crime of persons not to possess a firearm for
“possess[ing] a semi-auto handgun during a home invasion robbery that
resulted in the death of two people.” Police Criminal Complaint, 11/1/16, at
3. However, the original criminal information, filed on February 3, 2017,
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did not include any description of the gun Appellant allegedly possessed or the
circumstances of his illegal possession. Rather, it simply specified the prior
felony which prohibited Appellant’s possession of a firearm was a drug offense.
See Commonwealth’s Criminal Information, 2/3/17, at 2.
After his arrest, Appellant was interviewed by Agent Trent Peacock of
the Williamsport Bureau of Police. See N.T., 9/3/19, at 50. During the
interview, Agent Peacock showed Appellant a photo of a gun the police
recovered based on information from Wilson. See id. Appellant initialed the
photo and indicated it was the gun he sold to Wright on October 31, 2016.11
Id. The Commonwealth later sought to amend the criminal information to
add the following language:
TO WIT: [Appellant] did possess a Ruger .22 semi-automatic
handgun. [Appellant] was prohibited from possessing the firearm
based on a 1998 conviction for possession with intent to deliver a
controlled substance (F), and a 2011 conviction for delivery of a
controlled substance (F).
Commonwealth’s Motion to Amend Information at 1. Furthermore, the
Commonwealth averred: “At trial for the gun charges, the Commonwealth
will not be attempting to prove that [Appellant] possessed the handgun during
a home invasion robbery that resulted in the death of two people, but will
simply prove that the handgun in question was in [Appellant’s] possession and
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11 Although the interview was videorecorded, and played during Appellant’s
nonjury trial on the firearms charge, it is not included in the certified record.
Nonetheless, Appellant does not dispute that during the interview, he told
Agent Peacock “he sold a chrome gun and marijuana to Wright on October 31,
2016[.]” See N.T., 9/3/19, at 65-66; Appellant’s Brief at 14.
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that [Appellant] rode in a motor vehicle while the gun was in his possession
on [October 31st].” Id. at 1-2.
In granting the motion to amend, the trial court opined:
When viewing the factors, the amendment does not change the
factual scenario or add facts previously unknown to [Appellant].
The proposed amended information is evidence from the Affidavit
of Probable Cause, the testimony at the preliminary hearing, and
information [Appellant] was aware he had given during police
questioning. Specifying the caliber and model does not change
the factual scenario. This scenario was established during the
preliminary hearing. There is no change to the charges or the
elements Commonwealth needs to prove. Additionally[,] there is
no allegation by [Appellant] this will change his strategy or that
the timing has hindered his defense.
Trial Ct. Op. 9/11/18, at 3.
We agree. First, we note that although Appellant insists “the
amendment exposed [him] to a different factual scenario that was not fully
developed at the preliminary hearing,” the transcript from the preliminary
hearing is not included in the certified record. See Appellant’s Brief at 22.
“Our law is unequivocal that the responsibility rests upon the appellant to
ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa. Super. 2019)
(en banc). For this reason, we could conclude Appellant’s argument is waived.
Nevertheless, we note the Commonwealth attached several pages of
Wilson’s testimony during the January 17, 2017, preliminary hearing to its
brief filed in support of the motion to amend. See Commonwealth’s Brief in
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Support of Motion to Amend the Information, 9/5/18, Exhibit A, N.T., 1/17/17.
At the hearing, Wilson testified that he saw Appellant with a “German Ruger”
as Appellant “walked away from [his] car toward Shane Wright’s house[.]”
Id. at 10-11, 19. Although in his statement, Appellant told police he
possessed the firearm under different circumstances — i.e., selling it to
Wright, as opposed to using it during the home invasion — the
Commonwealth’s proposed amendment did not change the factual scenario
supporting the charge. The Commonwealth charged Appellant with
possessing a firearm, not selling a firearm.12 Thus, Appellant’s first claim
warrants no relief.
Second, Appellant argues the trial court erroneously deprived him of a
Franks hearing after he “made a substantial preliminary showing that [the]
affidavit of probable cause [for his arrest warrant] was supported by false
statements that were made knowingly and intentionally, or with reckless
disregard for the truth.” Appellant’s Brief at 23. Specifically, Appellant insists
the affiant omitted the fact that Cheyanna Wright, an eyewitness to the home
invasion and daughter of one of the victims, “described the shooter to police
as ‘light skinned’ . . . and that she had a gut feeling that Casey Wilson was
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12 We note, too, that at the conclusion of the nonjury trial, the trial court found
Wilson’s testimony that Appellant had a gun before the home invasion
credible. See N.T., 9/3/19, at 84-85. The court further found Appellant
“admitted to the police officers [and] on the stand that he possessed a loaded
.22 caliber automatic handgun on his hip, or tucked in his waistband[.]” Id.
at 85.
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her mother’s shooter.” Id. (citation omitted). Appellant further avers the
trial court agreed this was a “material omission,” but ultimately denied his
request for a hearing. Id. at 24. He maintains the police “deliberately
withheld the fact that an eyewitness described an individual other than
[Appellant] as the shooter in the home invasion.” Id. at 25.
In Franks, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary
to the finding of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant’s request. In the event
that at that hearing the allegation of perjury or reckless disregard
is established by the defendant by a preponderance of the
evidence, and, with the affidavit’s false material set to one side,
the affidavit’s remaining content is insufficient to establish
probable cause, the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
Franks, 438 U.S. at 155–56. Franks addressed a claim of false information
included in a probable cause affidavit. Here, Appellant alleges the
Commonwealth omitted relevant information from the affidavit. Under those
circumstances, this Court has explained:
Where a defendant alleges that material facts were omitted from
an affidavit, we consider “(1) whether the officer withheld a highly
relevant fact within his knowledge, where any reasonable person
would have known that this was the kind of thing the judge would
wish to know” and “(2) whether the affidavit would have provided
probable cause if it had contained a disclosure of the omitted
information.”
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Commonwealth v. Gould, 187 A.3d 927, 940 (Pa. Super. 2018) (citation
omitted).
In the present case, Appellant filed a motion for a Franks hearing,
asserting several “material” facts he claimed the affiant “intentional[ly]”
omitted from the probable cause affidavit, including the fact that “a witness
inside the residence told the police that she believed that Wilson was the
person who shot her mother.” See Appellant’s Amended Count VIII Omnibus
Pre-trial Motion Franks/Reverse Franks Motion, 6/8/17, at 3-4. On August
31, 2017, the court conducted argument on the motion, and later denied
Appellant’s request for a further hearing. See Order, 11/13/17.
The trial court opined:
[T]he Court finds that [Cheyanna’s statement, that the shooter
was a light skinned individual whom she believed was Wilson,]
was a material omission that the issuing authority would have
liked to have known prior to issuing an arrest warrant. [Despite
that] omission, the affidavit would still have provided probable
cause even if the statement had been included. Casey Wilson
himself was intimately involved in the incident that evening. He
admits to that. Other witnesses put his vehicle in the area at the
time of the shooting, which he admits he was. Witnesses saw two
people return to . . . Wilson’s vehicle. . . . Wilson told police who
those individuals were. Wilson’s statements are sufficient to
establish probable cause that [Appellant] participated in the
commission of those crimes.
* * *
. . . Though Wilson’s motives may be unclear, his admissions are
against his penal interest and therefore have the indicia of
reliability[.] Wilson was intimately involved in the events of the
evening and made statements with specific detail that
corroborated other witnesses[’] statements.”
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Trial Ct. Op., 11/13/17, at 7-9 (citation omitted). We agree.
Cheyanna did not positively identify Wilson as the masked gunman.
Rather, during her police interview following the shooting, “she told police that
she had a gut feeling Casey Wilson was her mother’s shooter” because the
shooter was “light skinned.” Trial Ct. Op., 11/13/17, at 5 (emphasis added).13
She explained:
The light skin part is what gets me. So you could see on the ski
mask had the eyes cut out and the lips. And it was that light color.
That’s what I keep thinkin’ of because Casey is a lighter color.
Id. We agree with the trial court that, even if this information was included,
the affidavit would have still provided probable cause to support Appellant’s
arrest. See Gould, 187 A.3d at 940. As the trial court explained, in his
statement implicating Appellant in the home invasion, Wilson also implicated
himself. See Trial Ct. Op., 11/13/17, at 8-9. Cheyanna’s “gut feeling” that
the masked shooter was Wilson does not undermine Wilson’s testimony that
Appellant was also involved in the crime. Thus, no relief is warranted.
Next, Appellant contends the trial court erred when it denied his motion
for a change of venue or venire prior to his firearms trial. Appellant
emphasizes that six days after his February 2019 conviction for the October
31, 2016, Wright home invasion, he was charged with the unrelated Park
Avenue shooting. Appellant’s Brief at 50-51. He insists the “pretrial publicity
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13 Although Cheyenna’s police statement is not in the certified record, the trial
court cited the relevant parts of the statement in its opinion.
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surrounding him, the case and the nature of his charges had been so
pervasive, negative, inflammatory, and so inculpatory that a change of venue
and/or venire [was] the only means for [him] to impanel an impartial jury[.]”
Id. at 52-53. Appellant maintains “the internet was saturated with . . . articles
and . . . news clips regarding [him], the charges in his case, and his recent
conviction of an unrelated homicide[,]” and referred to him as a “‘convicted
murder’ who is ‘locked up[.]’” Id. at 53 (footnote omitted). Appellant
summarizes:
[A]s a black defendant in a low population area [sic], saturated
with prejudicial media coverage which was heightened a week
after he was convicted of an unrelated homicide, he would be
unable to select a fair and impartial jury in Lycoming County by
the time this case proceeds to trial.
Id. at 54. Further, Appellant complains he was “unable to present evidence”
to support his motion because the court refused to hold a venue hearing. See
id. at 54-56. Thus, he claims, he had no choice but to waive his right to a
jury and proceed with a non-jury trial. Id. at 55.
“[A] trial court’s decision to deny [a motion to change venue] will not
be overturned by this Court on appeal, unless the record evidences that the
trial court has abused its discretion in making its ruling.” Commonwealth v.
Briggs, 12 A.3d 291, 313 (Pa. 2011).
Pursuant to Pennsylvania Rule of Criminal Procedure 584, “[v]enue or
venire may be changed by [a] court when it is determined after hearing that
a fair and impartial trial cannot otherwise be had in the county where the case
is currently pending.” Pa.R.Crim.P. 584(A). “As a general rule, for a
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defendant to be entitled to a change of venue because of pretrial publicity, he
or she must show that the publicity caused actual prejudice by preventing the
empaneling of an impartial jury.” Briggs, 12 A.3d at 313.
Nevertheless, our Court has recognized that there are some
instances in which pretrial publicity can be so pervasive and
inflammatory a defendant does not have to prove actual prejudice.
Prejudice will be presumed whenever a defendant demonstrates
that the pretrial publicity: “(1) was sensational, inflammatory,
and slanted toward conviction, rather than factual and objective;
(2) revealed the defendant’s prior criminal record, if any, or
referred to confessions, admissions or reenactments of the crime
by the defendant; or (3) derived from official police or
prosecutorial reports.” However, if the defendant proves the
existence of one or more of these circumstances, a change of
venue will still not be compelled unless the defendant also
demonstrates that the presumptively prejudicial pretrial publicity
“was so extensive, sustained, and pervasive that the community
must be deemed to have been saturated with it, and that there
was insufficient time between the publicity and the trial for any
prejudice to have dissipated.”
Id. at 314. Thus, it is evident the burden is on the defendant to demonstrate
the necessity of a change of venue.
In the present case, the record contains no evidence supporting
Appellant’s claim of pervasive, prejudicial, pretrial publicity because there was
no venue hearing. However, as the trial court explained: “Appellant’s
assertion that the trial court precluded him from having a venue hearing is
simply not accurate.” Trial Ct. Op., 8/14/20, at 11 (emphasis added). A
review of the relevant procedural history is instructive.
Appellant sought a change of venue prior to both the murder trial and
the firearms trial. See Appellant’s Omnibus Pretrial Motion, 5/3/17, at 8-9;
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Appellant’s Motion for a Change of Venue or Venire, 7/8/19. Before the
murder trial, the court denied Appellant’s request for a change of venue
“without prejudice to reinstate during jury selection.” Order, 6/22/17. The
record does not reveal whether Appellant argued for a change of venue during
voir dire for the murder charge.
With regard to the motion filed in July of 2019, the trial court
summarized the relevant procedural history as follows:
That motion was originally scheduled for a hearing on October 21,
2019. Appellant’s case, however, was on the August 13, 2019 call
of the list and the September trial term. Appellant filed an
application for continuance seeking to continue the case from the
call of the list and the trial term. The prosecutor opposed the
continuance request and stated, “The motion can be heard and
decided prior to [Appellant’s] September trial date. This case has
dragged on for too long.” The court denied the motion and
indicated it would decide the venue objection during jury
selection.
Appellant’s case was called for jury selection on August 14,
2019[.] Appellant’s counsel requested reconsideration of the
continuance request. She indicated that she had witnesses for the
October 21 hearing date who were not available at the time of jury
selection. She indicated that the witnesses would testify with
respect [to] the coverage of this case on social media.
* * *
[The trial court] denied Appellant’s request for
reconsideration. [The court] noted that many people do not read
the newspaper or watch the news anymore. [The court] did not
recall seeing anything about Appellant on social media.
Furthermore, the best evidence regarding the pervasiveness of
any pretrial publicity would come from the jurors indicating
whether they had seen or heard anything.
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Trial Ct. Op., 8/14/20, at 9-10 (record citations and footnote omitted).
Thereafter, Appellant waived his right to a jury trial. Prior to his nonjury trial
on September 3, 2019, Appellant renewed his “objection to having a Lycoming
County judge preside over [his] bench trial[.]” N.T., 9/3/19, at 2. The court,
once again, denied the motion for a change of venue, and proceeded to trial.
See id. at 10-11.
Thus, the trial court did not deny Appellant a venue hearing, but rather,
denied his request for a continuance of trial to conduct a venue hearing. While
Appellant argued the scheduling prevented him from presenting witnesses
concerning the pretrial publicity, at no time did Appellant present any
evidence concerning his claim. Further, as the Supreme Court explained in
Briggs:
Although it is conceivable that pretrial publicity could be so
extremely damaging that a court might order a change of venue
no matter what the prospective jurors said about their ability to
hear the case fairly and without bias, that would be a most
unusual case. Normally, what prospective jurors tell us about
their ability to be impartial will be a reliable guide to whether the
publicity is still so fresh in their minds that it has removed their
ability to be objective.
Briggs, 12 A.3d at 314 (citation omitted). Here, before the trial court could
question prospective jurors, Appellant waived his right to a jury trial.
Accordingly, we conclude Appellant failed to establish his right to relief on this
claim.
In his next issue, Appellant argues the trial court erred when it
instructed the jury on the crime of burglary when he was not charged with
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burglary. Appellant’s Brief at 31. He asserts the court’s instruction “misled
the jury[,]” and that “any evidence related to a burglary would not be relevant
at trial” because it would constitute a prior bad act. Id. at 32-33.
When we consider a challenge to a trial court’s jury instructions,
our [standard] of review is to determine whether the trial court
committed a clear abuse of discretion or an error of law controlling
the outcome of the case. A charge will be found adequate unless
the issues are not made clear, the jury was misled by the
instructions, or there was an omission from the charge amounting
to a fundamental error.
Commonwealth v. Bradley, 232 A.3d 747, 759 (Pa. Super. 2020) (citations
and punctuation omitted).
Here, the trial court instructed the jury on the elements of burglary, an
offense with which Appellant was not charged. In its opinion, the court
explained that the instruction was required because burglary was one of the
underlying felonies to support Appellant’s charge of second-degree murder.
See Trial Ct. Op., 8/14/20, at 5-6. We note, however, that at trial, the court
instructed the jury on the elements of burglary with respect to both the
offenses of second-degree murder and robbery.
Appellant was charged with robbery under subsection 3701(a)(1)(iii),
which provides “[a] person is guilty of robbery if, in the course of committing
a theft, he . . . commits or threatens immediately to commit any felony of
the first or second degree[.]” 18 Pa.C.S. § 3701(a)(1)(iii) (emphasis added).
The Commonwealth proposed, and the court charged, that burglary was the
underlying “first or second degree” Appellant committed in the course of
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committing a theft for purposes of his robbery charge, as well as the possible
underlying felony supporting a conviction of second-degree murder.14 See
N.T., 2/15/19, at 2-4, 18-19, 28-29.
It is well-established that “[w]here a murder is alleged to have been
committed in the perpetration of a felony, there is no requirement that the
defendant actually be charged with the underlying felony.” Commonwealth
v. Giles, 456 A.2d 1356, 1359 (Pa. 1983). Accord Commonwealth v.
Passmore, 857 A.2d 697, 706 (Pa. Super. 2004). Furthermore, the Supreme
Court has opined: “For a verdict to be founded on felony-murder, the felony
allegedly involved must be identified and described by more than merely its
name; there must be an understandable delineation of the elements of the
offense.” Commonwealth v. Shadron, 370 A.2d 697, 701 (Pa. 1977)
(vacating judgment of sentence for felony murder when trial court failed to
instruct jury on elements of either felony underlying the charge).
Appellant’s argument on appeal does not address, let alone refute, the
trial court’s reasoning. In the present case, we agree with the trial court that
it was “required to instruct the jury regarding the elements of the underlying
felonies[.]” See Trial Ct. Op., 8/14/20, at 6. The Commonwealth alleged
____________________________________________
14 “A criminal homicide constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.” 18 Pa.C.S. § 2502(b). See also 18 Pa.C.S. §
2502(d) (defining “[p]erpetration of a felony” as “[t]he act of . . . engaging in
or being an accomplice in the commission of, or an attempt to commit, [inter
alia,] robbery [or] burglary”).
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both that Appellant committed burglary, a first degree felony, during the
course of committing a theft, and that Rawls killed the victim “while he and
[Appellant] were partners in committing or attempting a robbery or
burglary[.]” N.T., 2/15/19, at 2, 18-19, 29 (emphasis added). Thus,
Appellant is entitled to no relief.
In his fifth claim, Appellant insists the trial court erred when it denied
his motion for a new trial “because the Commonwealth failed to disclose
material evidence to the defense until after trial” — specifically, two recorded
interviews with witness Ronald Shoop. Appellant’s Brief at 26-27. Although
he acknowledges the interviews were inculpatory, Appellant maintains the
Commonwealth’s nondisclosure of the interviews “deprived [him] of a fair trial
because he was unable to investigate Shoop’s statements and to question the
police regarding the interviews at trial.” Id. at 31.
By way of background, on July 31, 2019, after Appellant was convicted
of murder in the present case, he filed a motion for a new trial. The motion
alleged that defense counsel had received discovery for the Park Avenue
shooting, which included the aforementioned interviews with Shoop.
Appellant’s Motion for a New Trial, 7/31/19, at 2 (unpaginated). During the
interviews, which were conducted before Appellant’s February 2019 murder
trial in the present case, the police questioned Shoop about both the Park
Avenue shooting and the present home invasion. See id. Shoop stated
Appellant told him: (1) Appellant and his co-defendant entered the house in
the present case to rob the residents of “‘weed and money,’ and that Casey
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Wilson knew the victims[;]” (2) his co-defendant was armed with “a .40” and
he had “a .22[;]” (3) “he was already outside when he heard the shots[;]” (4)
his co-defendant “shot the victims in [the present case] to prove himself after
the Park Ave[nue] homicide[;]” and (4) “the guns were now in the water.”
Trial Ct. Op., 10/25/19, at 2-3.
At a hearing on Appellant’s motion, the Commonwealth “conceded that
that information was inadvertently suppressed as it was in possession of police
prior to trial.” Trial Ct. Op. 10/25/19, at 5. Nevertheless, the trial court
denied Appellant’s request for a new trial after concluding Appellant failed to
demonstrate “the facts put forth in Shoop’s two interviews [were] favorable
to [Appellant] and the suppression of the interviews prejudiced him at trial.”
Id. at 6.
On appeal, Appellant argues the Commonwealth violated Pa.R.Crim.P.
573 when it failed to turn over the Shoop interviews before trial. Rule 573, in
pertinent part, mandates that the Commonwealth disclose to the defendant
“[a]ny evidence favorable to the accused that is material either to guilt or to
punishment, and is within the possession or control of the attorney for the
Commonwealth[.]” Pa.R.Crim.P. 573(B)(1)(a).
A defendant seeking relief from a discovery violation must
demonstrate prejudice. A violation of discovery “does not
automatically entitle appellant to a new trial.” Rather, an
appellant must demonstrate how a more timely disclosure would
have affected his trial strategy or how he was otherwise
prejudiced by the alleged late disclosure.
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Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (citations
omitted).
Here, the trial court found Appellant “failed to demonstrate that the facts
put forth in Shoop’s two interviews are favorable to [Appellant] and that the
suppression of the interviews prejudiced him at trial.” Trial Ct. Op., 10/25/19,
at 6. The court explained Appellant’s alleged statement to Shoop that “the
guns used in the homicide were in the water, [was] not exculpatory[, and did]
not contradict any element of the crimes for which [Appellant] was convicted,
but simply change[d] how the firearm was disposed of.” Id. at 5. Further,
the court emphasized:
[T]he interviews with Shoop only solidify the Commonwealth’s
theory of the case and the evidence presented at trial concerning
[Appellant’s] involvement in the homicide. Both consistently show
[Appellant] used a .22 during the incident. Both demonstrate
Casey Wilson was the first to go in to the victim’s residence to
check and that the purpose of the burglary was to take drugs and
money from Shane Wright. Lastly, both show that the co-
defendant and not [Appellant] pulled the trigger.
Id. We agree. Absent any evidence of prejudice, Appellant’s request for a
new trial based on the Commonwealth’s inadvertent suppression of
inculpatory evidence fails.
In his next two issues, Appellant challenges the sufficiency of the
evidence supporting his firearms conviction. First, he argues “the
Commonwealth did not prove beyond a reasonable doubt that [he] possessed
a gun consistent with the factual scenario established at the preliminary
hearing [or in] the criminal complaint.” Appellant’s Brief at 42. Second, he
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maintains his conviction was “based almost exclusively on his recorded
statements . . . admitted in violation of the Corpus Delecti Rule.” Id. at 44.
Again, we conclude no relief is due.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Hewlett, 189 A.3d 1004, 1008 (Pa. Super. 2018)
(citation omitted).
Pursuant to 18 Pa.C.S. § 6105, a person who has been convicted of
certain enumerated felonies is prohibited from possessing, using, controlling,
selling, transferring, or manufacturing a firearm in the Commonwealth. 18
Pa.C.S. § 6105(a)(1). During the non-jury trial on the firearms charges,
Appellant stipulated that he has a prior conviction of an enumerated felony —
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delivery of heroin. See N.T., 9/3/19, at 53-54, 69. His claim on appeal
focuses on whether the Commonwealth proved he possessed a firearm
“consistent with the factual scenario established at the preliminary hearing
[and in] the criminal complaint.” See Appellant’s Brief at 42 (emphasis
added). He asserts the criminal complaint alleged he possessed a “semi-
automatic handgun during a home invasion robbery.” Id. However, he insists
the court convicted him of possessing a gun he sold to victim Shane Wright
earlier that evening, a fact he admitted in his statement to police. See id. at
43. Appellant maintains: “Because the gun that was used to commit the
homicide was arguably different than the gun that was sold to Shane Wright,
the verdict was based on a different factual scenario [than was] fully
developed at the preliminary hearing.” Id.
Appellant misconstrues the guilty verdict in this case. During the
firearms trial, Wilson testified that Appellant possessed a gun in Wilson’s car
before the home invasion, which he then “carried . . . with him” when he
exited the car. N.T., 9/3/19, at 14, 16. Wilson further stated that after they
fled the scene of the murders, Appellant gave Wilson “[h]is gun and his face
mask [which] he wrapped around the gun, and . . . told [Wilson] to . . . get
rid of it.” Id. at 17. Wilson claimed he later “threw [the gun] behind a bush
at Victoria Gardens” on Hepburn Street in Williamsport. Id. at 18. Agent
Peacock recovered that gun — a Ruger .22 semi-automatic pistol — which was
missing the magazine. Id. at 47-49. A magazine found at the crime scene
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matched the .22 recovered from the bushes at Victoria Gardens. Id. at 42-
43, 49, 59.
The Commonwealth also introduced Appellant’s November 18, 2016,
videotaped interview with police. See N.T., 9/3/19, at 54. During the
interview,15 Appellant told police he and Wilson sold a “chrome .22” gun to
Wright on the day of the murders. See id. at 65.
Appellant insists “the [trial] court found [him] guilty of persons not to
possess on the basis that [he] admitted to possessing a gun that he sold to
Shane Wright [and not] pursuant to the allegations as stated in the criminal
complaint that [he] ‘did possess a semi-automatic handgun during a home
invasion robbery.’” Appellant’s Brief at 43. We disagree. When announcing
its verdict, the trial court explained that while Wilson’s credibility was suspect
in some respects, the court was “convinced beyond a reasonable doubt that
[Wilson] saw [Appellant] with a gun.” N.T., 9/3/19, at 84-85 (“I think his
testimony was clear and consistent on that aspect of it.”). Furthermore, the
court noted that Appellant admitted, both to police officers and on the stand,
that he “possessed a loaded .22 caliber automatic handgun” on the day in
question, which he claimed he sold to Wright. Id. at 85.
____________________________________________
15 We note Appellant’s interview is not included in the certified record.
Nevertheless, he does not dispute that during the interview, he “admitted to
selling a chrome gun to Shane Wright earlier in the day before the robbery
home invasion.” See Appellant’s Brief at 42, 49.
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The testimony of Wilson alone, which was credited by the fact finder,
was sufficient to support the guilty verdict. See Hewlett, 189 A.3d at 1008.
Again, Appellant focuses on the criminal complaint, and not on the amended
criminal information. See Appellant’s Brief at 42-43. Regardless, Wilson
testified that Appellant possessed a gun in the car before the home invasion,
took the gun with him during the home invasion, and asked Wilson to dispose
of the gun after the home invasion. See N.T., 9/3/19, at 14, 16, 17. Appellant
is entitled to no relief.
In a related argument, Appellant also contends the guilty verdict was
improperly based on his confession that was admitted in violation of the corpus
delicti rule. Appellant’s Brief at 44. Again, this argument presumes
Appellant’s conviction of persons not to possess firearms is based upon his
statement to police that he sold a gun to Wright on the day of the murder.
See id. (“[Appellant] was convicted of the persons not to possess charge
based almost exclusively on his recorded statements.”). However, as noted
above, the trial court credited Wilson’s testimony that he observed
Appellant in possession of a firearm both before and after the home invasion.
Thus, Appellant’s “confession” was not necessary to support the guilty verdict.
Nevertheless, we also conclude there was no violation of the corpus
delicti rule. Although Appellant has framed his claim as a challenge to the
sufficiency of the evidence, we note “the corpus delicti rule applies to the
admissibility of evidence[,]” for which our review is “limited to a determination
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of whether the trial court abused its discretion.” Commonwealth v.
Otterson, 947 A.2d 1239, 1249 (Pa. Super. 2008) (citation omitted).
“The corpus delicti rule begins with the proposition that a criminal
conviction may not be based upon the extra-judicial confession of the accused
unless it is corroborated by independent evidence establishing the corpus
delicti[,]” that is “the occurrence of a loss or injury, and some person’s
criminal conduct as the source of that loss or injury.” Commonwealth v.
Ahlborn, 657 A.2d 518, 520–21 (Pa. Super. 1995) (citation omitted).
A trial court applies the corpus delicti rule in two phases: (1) “In
the first phase, the court determines whether the Commonwealth
has proven the corpus delicti of the crimes charged by a
preponderance of the evidence. If so, the confession [or
extrajudicial statement] of the defendant is admissible[;]” (2) “In
the second phase, the rule requires that the Commonwealth prove
the corpus delicti to the factfinder’s satisfaction beyond a
reasonable doubt before the factfinder is permitted to consider the
confession [or extrajudicial statement] in assessing the
defendant’s innocence or guilt.”
Commonwealth v. Bullock, 170 A.3d 1109, 1118 (Pa. Super. 2017)
(citation omitted).
With regard to the first phase of the corpus delicti rule, Appellant argues
Wilson’s testimony, that he observed Appellant with a gun, was insufficient to
establish by a preponderance of the evidence that Appellant, in fact,
possessed a gun on the evening in question. Appellant’s Brief at 46. He
emphasizes that Wilson admitted he (Wilson) possessed and disposed of the
gun, later lied to police about that fact, and was convicted of several crimen
falsi offenses. Id. Further, Appellant asserts the Commonwealth did not
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present evidence he had a prior conviction prohibiting his possession of a
firearm until after his statement was admitted into evidence. Id.With regard to the second phase, Appellant contends the
Commonwealth failed to prove beyond a reasonable doubt that he possessed
“a .22 Ruger during the homicide and robbery that occurred on October 31,
2016.” Appellant’s Brief at 49. He maintains that, although he admitted he
possessed the gun “at a different time and under a different set of
circumstances[,]” the Commonwealth was required to prove he possessed the
gun “pursuant to the factual scenario described” in the amended information.
Id. at 49-50. Again, Appellant insists the trial court found Wilson’s testimony
“not credible.” Id. at 49.
In addressing this claim, the trial court explained:
[T]here was sufficient evidence under the corpus delicti rule to
support the court’s admission of [Appellant’s] statements to Agent
Peacock that he possessed the revolver.
Not only was there direct evidence from Casey Wilson but
there was also corroborating circumstantial evidence including,
but not limited to, the loaded magazine found at the scene where
[Appellant] was present, the magazine fitting in the gun given to
Mr. Wilson and hidden by him, and the stipulation by the parties
that [Appellant] was previously convicted of a crime precluding
him from possessing a weapon. . . . Contrary to what [Appellant]
argued, the stipulation was entered into evidence prior to
[Appellant’s] admission being entered into evidence.
* * *
[Moreover, with regard to the second phase, t]he
Commonwealth has clearly proven beyond a reasonable doubt
that the “injury or loss” was consistent with the crime having been
committed. The evidence was in fact overwhelming that
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[Appellant] possessed the gun and was not permitted to do so
given his prior conviction.
Very recently, in Commonwealth v. Harper, [230 A.3d
1231 (Pa. Super. 2020)], the Superior Court addressed a corpus
delicti challenge in connection with a persons not to possess
conviction. The burden on the Commonwealth was to establish
that the defendant “possessed a firearm.” Unlike in this case, the
Commonwealth failed to meet that burden because there was “not
a scintilla of evidence connecting [Harper] to the scene of the
underlying shooting, the casings found, or the particular shooting
itself.” The only evidence was Harper’s admission to carrying a
gun on the night in question. In this case, [Appellant] was
observed carrying a gun to and from a shooting and he requested
another to discard the gun. Moreover, the gun was found and
identified. Clearly, the corpus was established.
Trial Ct. Op., 4/7/20, at 6-8 (emphasis added).
Upon our review, we conclude the trial court thoroughly addressed and
properly disposed of Appellant’s corpus delicti challenge on appeal.
Appellant’s stipulation that he had a prior, enumerated conviction which
prohibited him from possessing a firearm, coupled with Wilson’s testimony
that he observed Appellant in possession of a firearm both before and after
the home invasion, was sufficient to establish the corpus of the crime.16 Thus,
the trial court did not abuse its discretion in admitting, and considering,
Appellant’s statement that he was in possession of a firearm on the night in
question. See Bullock, 170 A.3d at 1117–18; Otterson, 947 A.2d at 1249.
____________________________________________
16 As noted supra, while the trial court found Wilson’s credibility suspect in
some respects, the court was “convinced beyond a reasonable doubt that
[Wilson] saw [Appellant] with a gun.” N.T., 9/3/19, at 84-85 (“I think his
testimony was clear and consistent on that aspect of it.”).
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Lastly, Appellant challenges the weight of the evidence supporting his
firearms conviction.17 Our review is guided by the following:
“The weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.” Resolving
contradictory testimony and questions of credibility are matters
for the finder of fact. It is well-settled that we cannot substitute
our judgment for that of the trier of fact.
Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super. 2017).
Thus,
[w]hen a trial court evaluates a weight of the evidence claim, the
trial court may award relief only “when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and the
award of a new trial is imperative so that right may be given
another opportunity to prevail.”
On appeal, the inquiry differs. When it considers a weight claim,
an appellate court must review the trial court’s exercise of
discretion. “A motion for a new trial based on a claim that the
verdict is against the weight of the evidence is addressed to the
discretion of the trial court.” “A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.”
We do not contemplate the underlying question of whether
the verdict actually was against the weight of the evidence.
Rather, we evaluate the trial court’s decision of that issue,
and we do so under an abuse of discretion standard.
Commonwealth v. Clemons, 200 A.3d 441, 463–64 (Pa. 2019) (citation
omitted; emphasis and paragraph break added), cert. denied, 140 S. Ct. 176
(2019).
____________________________________________
17 Appellant properly preserved his weight of the evidence claim in a post-
verdict motion. See Pa.R.Crim.P. 607(A) (mandating a weight of the evidence
claim be raised in the first instance before the trial court); Appellant’s Post-
Verdict Motion, 9/6/19, at 6-7 (unpaginated).
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In the present case, Appellant argues his firearms conviction was “based
wholly on conjecture” because the evidence presented at trial established only
that Wilson, not Appellant, “possessed the firearm that was presented at trial.”
Appellant’s Brief at 36-37. He emphasizes Wilson’s testimony – that Appellant
possessed the firearm – was “not corroborated by any evidence.” Id. at 37.
Moreover, Appellant notes that the gun used in the home invasion would have
been unloaded since the magazine was recovered from the crime scene, but
Agent Peacock testified that the gun recovered at Victoria Gardens had to be
unloaded. See id. at 38. Thus, he claims, it could not have been the same
gun. Finally, although during his police statement, Appellant identified a photo
of the gun he purportedly sold to Wright, he notes that Agent Peacock
acknowledged the gun in the photo “appeared to be more silver than the one
that was presented at trial.” Id. Again, no relief is due.
In its order denying Appellant’s weight of the evidence claim, the trial
court opined:
[Appellant] argues that a magazine was found at the scene
of the homicide, yet Agent Peacock allegedly testifies that the gun
he sent to the lab had to be “unloaded”. [Appellant] argues as
well that the color of the gun as depicted in different photographs
shown to [Appellant] and an alleged accomplice was different than
the actual gun that was produced at trial.
[Appellant’s] argument is addressed to the discretion of the
Court. The Court finds that these facts were not so clearly of
greater weight that to ignore them would be to deny justice. The
verdict in this Court’s opinion was not so contrary to the evidence
as to shock the Court’s sense of justice. While the Court
understands that there are discrepancies in testimony, it is up to
the fact finder to decide what to believe, if anything. The Court
finds that the evidence produced at trial was not only sufficient .
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. . but also clearly of sufficient weight to support the verdict. [T]he
facts as presented by [Appellant] in [his] argument are not clear
and weighty as to shock this Court’s sense of justice.
Order, 10/17/19, at 1-2.
We agree. The trial court credited Wilson’s testimony that he observed
Appellant with a firearm both before and after the home invasion. Appellant’s
haggling over the color of the firearm that he purportedly sold versus the
firearm recovered at Victoria Gardens is a red herring. Agent Peacock showed
Appellant a photo of the recovered firearm, and Appellant identified the gun
in the photo as the one he allegedly sold to Wright. N.T., 9/3/19, at 50-51.
Any discrepancy between the color of the gun as it appeared in the photo, and
the color of the actual gun presented as evidence at trial was for the fact finder
to resolve.
Moreover, Appellant’s contention that Agent Peacock testified the gun
recovered at Victoria Gardens was loaded is also a mischaracterization.
Appellant is referring to the following excerpt from the firearms trial:
[Commonwealth:] . . . [D]o you know when this picture [of the
gun recovered at Victoria Gardens] was taken?
[Agent Peacock:] The specific date not without looking at my
report. This was the .22 in question which was recovered by
myself behind the bushes at [Victoria Gardens]. We conferred
with the lab as far as how we were going to process it. This picture
was taken while we made it safe, unloaded it to package it to
go to a lab.
N.T., 9/3/19, at 47-48 (emphasis added). However, only a few questions
later, the Commonwealth asked Agent Peacock if there was a magazine in the
handgun he located in the bushes at Victoria Gardens. Id. at 49. Agent
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Peacock responded: “There was not.” Id. He further explained that he
subsequently loaded the handgun with the magazine recovered from the
murder scene, and the gun “functioned properly.” Id.
Thus, we conclude the trial court acted within its discretion when it
determined these purported inconsistencies in the evidence and testimony did
not affect the verdict. Because Appellant failed to demonstrate the trial court
abused its discretion in denying his weight of the evidence claim, no relief is
warranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/07/2021
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